United States District Court, D. Colorado
BOARD OF COUNTY COMMISSIONERS FOR DOUGLAS COUNTY, COLORADO, Plaintiff,
v.
CROWN CASTLE USA, INC. and T-MOBILE WEST LLC, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
FOR JUDGMENT ON THE PLEADINGS (DKT. #49)
N.
Reid Neureiter United States Magistrate Judge
Now
before the Court is the Defendants Crown Castle USA, Inc. and
T-Mobile West LLC's (collectively, the “Company
Defendants”) Motion for Judgment on the Pleadings.
(Dkt. #49.) The Plaintiff, the Board of County Commissioners
for Douglas County, Colorado (“Douglas County”),
filed a response to the Motion of August 13, 2018. (Dkt.
#52.) The Motion was then referred to me by Judge Raymond
Moore on August 14, 2018. (Dkt. #54.) The Company Defendants
filed their Reply on September 5, 2018. (Dkt. #59.)
The
Court scheduled oral argument on the Motion for Judgement on
the Pleadings for November 14, 2018. The Court heard oral
argument and took the matter under advisement. (Dkt. #67.)
Prior to the oral argument, on November 2, 2018, the Parties
had filed their respective Motions for Summary Judgment.
See Company Defendants' Motion for Summary
Judgment (Dkt. #61) and Douglas County's Motion for
Summary Judgment (Dkt #62). On the same day that I heard
argument, Judge Moore referred the summary judgment motions
to me for recommendation. (Dkt. #66.) The Parties filed their
respective briefs in opposition to summary judgment on
December 17, 2018 (Dkt. #69 and Dkt. #70). I have scheduled
argument on the Parties' respective Motions for Summary
Judgment for January 9, 2019. (Dkt. #68.)
1.
BACKGROUND
This
case involves an effort by a wireless telephone provider
(T-Mobile) and a wireless facilities infrastructure company
(Crown Castle) to make modifications to an existing cellular
telephone antenna facility in Douglas County, Colorado.
Generally, there is a tension between the desire of cellular
or wireless telephone companies to make bigger antennas and
larger facilities to expand networks for improved coverage,
and local governments' desire to maintain zoning,
historic, or esthetic restrictions on the size or design of
wireless antennae tower installations. Congress has passed
legislation, and the Federal Communications Commission
(“F.C.C.”) has issued regulations, seeking to
provide expedited mechanisms for the resolution of these
competing interests. This case is reflective of the tension
that exists between local zoning authorities and cellular
providers, and involves application of the federal
legislation and regulations intended to address that tension.
Specifically,
the Company Defendants argue that pursuant to Section 6409(a)
of the Middle Class Tax Relief and Job Creation Act (the
“Spectrum Act”), codified at 47 U.S.C. §
1455(a)(1), Douglas County was required to approve an
application for an Eligible Facility Request
(“EFR”) submitted by the Company Defendants. An
EFR is an application to make a change to an existing
wireless tower or base station that does not substantially
change the existing facility's physical dimensions. 47
U.S.C. § 1455(a)(1). Federal regulations adopted by the
F.C.C. to implement the Spectrum Act define when a proposed
improvement should be deemed a substantial change.
See 47 C.F.R. § 1.40001(b)(7). The Company
Defendants say their proposed modification meets the
regulation definition. Per regulation, a State or local
government “may not deny and shall approve” any
EFR that does “not substantially change the physical
dimensions” of the existing structure. 47 C.F.R. §
1.40001(c). The Company Defendants further argue that because
Douglas County failed to either grant or deny their
application within the time prescribed by the F.C.C.'s
regulations, the application should be “deemed
granted” as a matter of law. See 47 C.F.R.
§ 1.40001(c)(4) (providing for the “deemed
granted” remedy in the event the reviewing State or
local government fails to approve or deny a request within
the timeframe provided for review).
For its
part, Douglas County in its Complaint alleges that it did in
fact timely deny the Company Defendants' application, and
did so because the proposed facility improvements would
change “stealth” concealment characteristics of
the original facility. According to Douglas County, the
original facility was supposed to look like an unadorned
utility pole, and the proposed modifications would made it
look like a “marshamallow on a stick, ” negating
the concealment characteristics of the original design.
Douglas
County accurately points out that the F.C.C.'s definition
of what constitutes a “substantial change”
includes any modification that “changes the physical
dimensions of an eligible support structure” in a way
that “would defeat the concealment elements of the
eligible support structure.” 47 C.F.R. §
1.40001(b)(7)(v).
To
summarize the two competing positions, the Company Defendants
allege that they submitted a valid EFR application consistent
with federal regulations, that Douglas County refused to act
on the application, and the application either should be
deemed granted because of Douglas County's inaction, or
should be found as a matter of law to be an insubstantial
change in physical characteristics that must be granted. By
contrast, Douglas County's position, as articulated in
its Complaint, is that the application was never a valid EFR
in the first place because it proposed to change concealment
characteristics of the existing facility, and Douglas County
properly informed the Company Defendants that it had denied
the application. According to Douglas County, the application
was denied, and should not be deemed granted because it was
never a valid EFR in the first place.
2.
It is recommended that the Company Defendants' Motion for
Judgement on the Pleadings be denied without prejudice to the
legal arguments contained therein.
In the
Company Defendants' Motion for Judgment on the Pleadings,
they argue that the issues raised by Douglas County's
complaint and Defendant Companies counterclaims “can be
resolved wholly as a matter of law” and therefore the
Court should grant judgment on the pleadings. (Dkt. #49 at
2.) Candidly, it does not seem possible that the case could
or should be resolved on a motion for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). Judgment on the
pleadings is appropriate only if the plaintiff's
complaint fails to state a claim for relief that is plausible
on its face. Myers v. Koopman, 738 F.3d 1190, 1184
(10th Cir. 2013). Federal courts generally follow a
“restrictive standard” in ruling on motions for
judgment on the pleadings, and limit its use to cases
“in which there is no substantive dispute that warrants
the litigants and the court proceeding further.” 5C
Wright & Miller, Federal Practice and Procedure
Civil 3d §1368 at 222 (3d ed. 2004). And in assessing a
motion for judgment on the pleadings pursuant to Rule 12(c),
a court must accept the well-pleaded allegations of the
complaint as true and construe them in the light most
favorable to the non-moving party which, in this case, is
Douglas County. Realmonte v. Reeves, 169 F.3d 1280,
1283 (10th Cir. 1999).
The
parties have made conflicting allegations and assertions
about what may have happened in terms of communicating or not
communicating Douglas County's denial (or non-denial) of
the EFR application. The Parties also make conflicting
allegations about whether the original facility had stealth
concealment characteristics, and whether the Company
Defendants' proposed modifications would materially
change or negate those concealment elements. The federal
regulations suggest that if the original facility was
purposefully built with concealment characteristics, and the
proposed modification would change those characteristics,
then it is not a valid EFR. 47 C.F.R. §
1.40001(b)(7)(v).
Having
made a preliminary review of the competing cross-motions for
summary judgment, it also appears that the legal arguments
presented in those motions are very similar (if not
identical) to the arguments presented on the instant Motion
for Judgment on the Pleadings. But it appears that many of
the factual allegations in the respective complaints have
been fleshed out by the evidentiary materials submitted with
the summary judgment motions. Because the Court has already
scheduled a hearing on the cross-motions for summary
judgment, and because the Parties have already submitted
materials purporting to show the absence of genuine issues of
material fact, it makes the most sense at this time to deny
the Defendant Companies' Motion for Judgment on the
Pleadings without prejudice to the legal arguments raised
therein. That way, the Court will be able to assess the legal
arguments raised by both sides in the full context of the
alleged undisputed material facts presented in the competing
summary judgment motions.
3.
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